1.1 The following words and phrases have the following meanings in these terms and conditions unless the context otherwise requires.
Advertiser: the person, firm or company who promotes or advertises products or services to the public, whether such person, firm or company is the Buyer or not.
Advertising: any advertising material or promotional material or blocks of artwork supplied by, commissioned by, or produced by Kelsey for, the Advertiser to be published in a Publication.
Booking Notes: any specific requirements relating to the Advertising, as set out in the Order or otherwise agreed in writing by Kelsey.
Buyer: the person, firm or company placing the Order with Kelsey including but not limited to the Advertiser’s advertising agency or media buyer.
Cancellation Date: the latest date by which Kelsey must receive written notice from the Buyer that it wishes to cancel the Contract, as identified in the Order.
Conditions: these terms and conditions as amended from time to time in accordance with Condition 2.5.
Contract: the contract between the Buyer and Kelsey for the purchase and supply of the Services in accordance with these Conditions.
Copy Deadline: the date by which Kelsey must receive the Advertising as notified to the Buyer in writing by Kelsey’s production team.
Fees: the fees and charges payable by the Buyer for the Services in accordance with Condition 5.
Kelsey: Kelsey Publishing Limited, a company registered in England and Wales under company number 2387149 and whose registered address is The Granary Yalding Hill, Yalding, Maidstone, England, ME18 6AL.
Order: an order for Services submitted by the Buyer to Kelsey.
Publication: the print publication owned by Kelsey, as identified in the Order.
Publication Date(s): the date(s) of the Publication in which the Advertising is to appear is to be issued to the public, as identified in the Order.
Services: the services in respect of the Advertising, and any related services agreed to be provided by Kelsey to the Buyer pursuant to the Contract.
Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes email.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that statute or statutory provision.
Unless the context requires otherwise, words importing the singular shall include the plural and the same shall apply the other way round.
2. APPLICATION OF THESE CONDITIONS
The Order constitutes an offer by the Buyer to purchase the Services in accordance with these Conditions.
The Order shall only be deemed to be accepted upon Kelsey issuing written acceptance of the Order (by way of order confirmation), at which point and on which date the Contract shall come into existence.
These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Any quotation given by Kelsey shall not constitute an offer, and is only valid for a period of 10 days from its date of issue.
Kelsey may amend these Conditions at any time by giving written notice to the Buyer . Any Orders placed by the Buyer prior to the implementation of amendments shall be governed by the Conditions prevailing on the date of the Order.
3. The Services and the BUYER’S Obligations
3.1 The Buyer undertakes and warrants to Kelsey that:
3.1.1 in relation to any Advertising the Buyer enters into the Contract as a principal notwithstanding that the Buyer may be acting directly or indirectly for the Advertiser;
3.1.2 the reproduction and/or publication of the Advertising by Kelsey as originally submitted or as amended pursuant to Condition 4 will not breach any contract or infringe or violate any copyright, trade mark, or any other intellectual property or other personal or property rights of any person or render Kelsey liable to any proceedings whatsoever;
3.1.3 any information supplied by the Buyer in connection with the provision of the Services is accurate, complete and true in all respects;
3.1.4 in respect of any Advertising which contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified the Buyer has, or has procured that the Advertiser has, obtained the authority of such living person to make use of such name, representation and/or copy;
3.1.5 the Advertising complies with the requirements of all relevant laws, rules and regulations for the time being in force or which may be applicable in such jurisdiction as the Advertising shall be made available;
3.1.6 the Advertising is legal, decent, honest and truthful and complies with all relevant codes relating to advertising as may be appropriate including (but not limited to) the UK Code of Non-Broadcast Advertising and Direct Promotional Marketing and all other relevant codes under the general supervision of the Advertising Standards Authority, or such other equivalent organisation;
3.1.7 in relation to any financial promotion, as defined under the Financial Services and Markets Act 2000 (the Act), the Buyer has ensured that the Advertiser is, or the Advertising has been, approved by an authorised person within the meaning of the Act or the Advertising is otherwise permitted under the Act, under the Financial Promotion Order 2001 under any other legislation subordinate to the Act; and
3.1.8 the Advertising shall not contain any data, image or other material which:
(a) is offensive, obscene or indecent, or is capable of being resolved into obscene or indecent images or material;
(b) is defamatory, sexist, threatening or racially, ethnically or otherwise objectionable;
(c) is designed or likely to cause annoyance, inconvenience, unwanted attention or needless anxiety to any other person;
(d) is designed to or is likely to cause disruption to any computer system or to any network;
(e) is illegal or is likely to induce an illegal act; and
(f) it has authority to enter into and implement the Contract.
The Buyer shall provide the Advertising to Kelsey promptly and no later than the Copy Deadline, and in such format expressly specified by Kelsey, without further reminder by Kelsey.
3.3 Where the Buyer is an advertising agency or media buyer it warrants that it is authorised by the Advertiser to place the Advertising with Kelsey.
3.4 Kelsey shall be entitled at any time without notifying the Buyer to make changes to the Services which are necessary to comply with any applicable security or other statutory requirements and shall determine the manner in which the Services are provided.
Kelsey may, at its discretion and if it is practicable to do so,
3.5.1 arrange to supply proofs of the Advertising copy to the Buyer; and/or
3.5.2 amend the Advertising copy in accordance with the Buyer’s instructions,
provided that Kelsey has received the copy or request to amend the copy (as the case may be) in a reasonable time in advance of the Copy Deadline. Kelsey will not, however, be required to supply Advertising copy under Condition 3.5.1 in the case of repeat Advertising (that is, where the contents of the Advertising have not changed since the preceding Publication).
If Kelsey does not receive the Advertising by the Copy Deadline under Conditions 3.2 or 3.5, the Buyer acknowledges and accepts that:
3.6.1 Kelsey may publish the most recent Advertising copy (if any) in Kelsey’s possession and shall not be liable to the Buyer or the Advertiser for any consequence arising out of the Advertising being out of date; and
3.6.2 where Kelsey does not hold the most recent Advertising copy, the Buyer shall pay for the space reserved in the Publication in full in accordance with Condition 5, notwithstanding that the Advertising has not been published.
4. Acceptance AND USE OF ADVERTISING
4.1 All contents of Advertising are subject to Kelsey’s approval. Kelsey does not undertake to review the contents of any Advertising and any such review and approval by Kelsey shall not be deemed to constitute an acceptance by Kelsey that such Advertising is provided in accordance with these Conditions nor will it constitute a waiver of Kelsey’s rights under the Contract.
4.2 Kelsey:
4.2.1 shall, following its acceptance of the Advertising, perform the Services for the Publication Period, in accordance with any requirements set out in the Booking Notes, subject to the provisions of the Contract;
4.2.2 reserves the right at its sole discretion to decline to publish or to omit, suspend or change the position and/or contents of any Advertising accepted by it;
4.2.3 may, without relaxing or reducing the Buyer’s warranties and obligations set out in Condition 3, refuse or require to be amended any artwork, materials or copy for or relating to Advertising so as to comply with the legal or moral obligations placed upon Kelsey or to avoid infringing a third party’s rights or any statutory or regulatory requirements; and
4.2.4 reserves the right at any time during the Publication Period to refuse the Advertising or, if the Advertising has been published, remove or withdraw the Publication containing the Advertising, if Kelsey reasonably considers the Advertising breaches any applicable laws or the rights of any third party or is prejudicial to the interests of Kelsey and/or its business.
It is the responsibility of the Buyer to check the accuracy of the Advertising and, without affecting the provisions of Condition 6, Kelsey assumes no responsibility for the repetition of an error in the Advertising.
Where the Buyer has agreed to supply inserts as part of the Advertising, which have been accepted and approved by Kelsey, Kelsey reserves the right to charge for such inserts at the rate agreed with the Buyer if the inserts do not arrive by the agreed time and place for insertion.
The Buyer acknowledges and agrees that the Advertising, any blocks of artwork and all other materials and property belonging to the Advertiser that are in Kelsey’s possession:
4.5.1 are held by Kelsey at the owner’s risk and the Buyer shall be responsible for insuring the Advertising and items mentioned in this Condition 4.4 against loss or damage from whatever cause, and Kelsey shall not, under any circumstance, be liable for any such loss or damage;
4.5.2 once Kelsey has performed its obligations under the Contract in relation to any of the Advertising and items mentioned in this Condition 4.4, the Buyer shall be responsible for collecting such items from Kelsey’s premises; and
4.5.3 if the Buyer fails to collect the Advertising and items in accordance with Condition 4.5.2, Kelsey reserves the right, without notice, to destroy such items which have been in Kelsey’s possession for more than 12 months, without incurring any liability.
5. FEES AND Payment
5.1 Kelsey will charge the Buyer the Fees based on its rate card in force at the time of formation of the Contract or such other amount agreed between the parties in writing.
5.2 Kelsey may increase the Fees at any time by giving written notice to the Buyer and the Fees prevailing at the time the Contract is made shall bind the Buyer.
5.3 Kelsey may invoice the Buyer for all or any part of the Fees at any time after acceptance of the Order.
5.4 Unless otherwise agreed between the parties, the Buyer shall pay all invoices for the Fees by the Publication Date and in any event, no later than 30 (thirty) days from the date of invoice. Time of payment shall be of the essence.
5.5 All sums due in respect of the Fees are exclusive of Value Added Tax or other applicable sales tax, which the Buyer shall pay in addition to the Fees.
5.6 If the Buyer fails to make any payment due to Kelsey under the Contract by the due date for payment, then:
5.6.1 where the Buyer is an advertising agency or media buyer, the Buyer shall without affecting any other right which Kelsey may have, be liable for the following reductions in any commission otherwise allowed to agencies or media buyers:
(a) 3% on the gross rate where the overdue amount has not been paid on the due date;
(b) a further 2% making a total of 5% on the gross rate, where the overdue amount remains unpaid for 30 days or more after the due date; and/or
5.6.2 the Buyer shall pay interest on the overdue amount at the rate of 2% per cent per annum above Lloyds Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
5.7 The Buyer shall additionally pay all expenses Kelsey may incur in collecting arrears on overdue payments whether or not proceedings have been taken and regardless of the outcome of such proceedings.
The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
6. Liability
6.1 Nothing in the Contract shall limit or exclude either party’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be limited or excluded by applicable law.
6.2 Subject to Condition 6.1, Kelsey shall not be liable to the Buyer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for: (a) any late or incorrect publication of the Advertising; (b) any non-publication or inaccurate reproduction of the Advertising; (c) loss of profits; (d) loss of sales or business; (e) loss of agreements or contracts; (f) loss of anticipated savings; (g) loss of use or corruption of software, data or information; (h) loss of damage to goodwill; and (i) any indirect or consequential loss.
If Kelsey provides any estimates or targets relating to the number, proportion or type of readers likely to be exposed to the published Advertising in the Publication, the Buyer acknowledges and agrees that such estimates or targets are ultimately beyond Kelsey’s control and, accordingly, Kelsey shall not be liable for any costs or losses incurred by the Buyer or by any third party as a result of the Buyer’s reliance on such estimates and targets. Kelsey does not, under any circumstance, provide a guarantee to the Buyer that its provision of the Services will result in such estimates or targets being achieved.
Kelsey will not be liable for any loss of copy, artwork, photographs, data or other materials which the Buyer supplies to it and the Buyer shall be responsible for retaining in its possession sufficient quality and quantity of such materials for whatever purposes it may require.
6.5 Subject to Conditions 6.1 to 6.4 inclusive, Kelsey’s total liability (whether in contract, tort or otherwise) under or in connection with the Contract or based on any claim for indemnity or contribution shall be limited to the Fees (excluding any VAT, duty, sales or similar taxes) paid by the Buyer to Kelsey for the Services.
This Condition 6 shall survive termination or expiry of the Contract.
7. Intellectual Property
7.1 Except as provided in the Contract, Kelsey retains all right, title and interest in and to the content of the Publication, including without limitation copyrights, trade marks and other intellectual property rights.
7.2 The Buyer (or the Advertiser) retains all rights, title and interest in and to the Advertising, including without limitation copyrights, trade marks, database rights and other intellectual property rights.
The Buyer shall procure that the Advertiser grants to Kelsey a royalty-free, non-exclusive licence to use, publish and reproduce the Advertiser’s name, logo, trade marks and brands to the extent necessary to enable Kelsey to comply with its obligations under the Contract.
7.4 Any ideas, concepts, know-how or techniques developed by Kelsey or obtained during the performance of the Services will be owned exclusively by Kelsey.
8. Termination AND CANCELLATION
8.1 Without limiting its other rights or remedies, Kelsey may terminate the Contract by giving written notice to the Buyer if:
8.1.1 the Buyer fails to pay any amount to Kelsey due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
8.1.2 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 (fourteen) days of being notified in writing to do so;
8.1.3 any of the warranties or representations given by the Buyer contained in the Contract are false or inaccurate in any material way;
8.1.4 the Advertising breaches any applicable laws or the rights of any third party or is prejudicial to the interests of Kelsey;
8.1.5 the Buyer’s financial position deteriorates to such an extent that in Kelsey’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
8.1.6 the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
8.1.7 the Buyer ceases or threatens to cease to carry on business.
The Buyer may cancel the Contract without cause by giving Kelsey written notice prior to the Cancellation Date.
On termination of the Contract for any reason:
8.3.1 Kelsey will be entitled to immediately suspend publication of, or remove, the Advertising;
8.3.2 the Buyer shall pay Kelsey, on demand, an amount that represents any unearned series discounts offered to it by Kelsey under the Contract;
8.3.3 the accrued rights, remedies, obligations and liabilities of Kelsey as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
8.3.4 any Conditions which expressly or by implication survive termination shall continue in full force and effect.
9. Indemnity
The Buyer shall indemnify and keep Kelsey fully and effectively indemnified against any liability (which liability shall include, without limitation, all losses, costs, claims, demands, actions, damages, legal and other professional fees and expenses on a full indemnity basis) which Kelsey may suffer or incur as a result of any Advertising, the infringement of any intellectual property rights of any third party, or by reason of any breach or non-fulfilment of any of the Buyer’s obligations in respect of the Contract.
10. Data Protection
10.1 For the purposes of this Condition 12 all personal data will be looked after in accordance with General Data Protection Regulations (GDPR) as detailed in Kelsey’s privacy policy. Please refer to our full policy at https://www.kelsey.co.uk/privacy-policy/ , with particular reference to the section 1 and 2 – Business Contact Information and Customers / Prospects.
10.2 The Buyer shall procure that the Advertiser shall comply with the General Data Protection Regulations (GDPR).
11. Unforeseen events
11.1 Except with respect to obligations to pay the Fees or other charges, Unforeseen Event means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, ceasing to be entitled to access the internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
11.2 If a party is wholly or partially prevented from carrying out its obligations under the Contract by the occurrence of an Unforeseen Event, then that party’s obligation to perform in accordance with this Contract will be suspended for the duration of the Unforeseen Event.
11.3 As soon as practicable after the Unforeseen Event arises, the party affected by the Unforeseen Event must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Contract.
12. Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this Condition 12.1, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 12.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day from its date of issue after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, the next working day after transmission.
A working day, for the purposes of this Condition 12, shall mean a day other than a Saturday, Sunday or public holiday when banks in London are open for business.
13. General
13.1 No one other than a party to the Contract shall have any right to enforce any of its terms.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.3 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract. Nothing in this Condition shall limit or exclude any liability for fraud.
The Buyer shall not assign the Contract or any part of it to any person, firm or company without Kelsey’s prior written consent.
Failure or delay by a party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of its rights under the Contract. Any waiver by a party shall not be deemed a waiver of any subsequent breach.
13.6 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Kelsey Publishing Limited
November 2018
KELSEY PUBLISHING LIMITED
ONLINE ADVERTISING TERMS AND CONDITIONS
1. DEFINITIONS and interpretation
1.1 The following words and phrases have the following meanings in these terms and conditions unless the context otherwise requires.
Advertiser: the person, firm or company who promotes or advertises products or services to the public, whether such person, firm or company is the Buyer or not.
Advertising: any advertising material or promotional material supplied by, commissioned by, or produced by Kelsey for, the Advertiser for transmission by the internet from the Website (including without limitation advertising banners being electronic advertising whose dimensions and delivery format are agreed, customised links and sponsorship logo displays), that is placed on pages of the Website, within an E-newsletter or on a Social Media Page.
Booking Notes: any specific requirements relating to the Advertising, as set out in the Order or otherwise agreed in writing by Kelsey.
Buyer: the person, firm or company placing the Order with Kelsey including but not limited to the Advertiser’s advertising agency or media buyer.
Cancellation Date: the latest date by which Kelsey must receive written notice from the Buyer that it wishes to the cancel the Contract, as identified in the Order.
Conditions: these terms and conditions as amended from time to time in accordance with Condition 2.5.
Contract: the contract between the Buyer and Kelsey for the purchase and supply of the Services in accordance with these Conditions.
Copy Deadline: the date by which Kelsey must receive the Advertising as notified to the Buyer in writing by Kelsey’s production team.
E-newsletter: an electronic subscription newsletter published by Kelsey and distributed to an email subscriber database controlled by it, as each are identified in the Order.
Fees: the fees and charges payable by the Buyer for the Services in accordance with Condition 5.
Kelsey: Kelsey Publishing Limited, a company registered in England and Wales under company number 2387149 and whose registered address is The Granary Yalding Hill, Yalding, Maidstone, England, ME18 6AL.
Order: an order for Services submitted by the Buyer to Kelsey.
Publication Period: the period (as specified in the Order or otherwise agreed in writing by Kelsey) for which the Advertising is to be placed on the Website, within an E-newsletter and/or on a Social Media Page, until terminated in accordance with the Contract.
Services: the services in respect of the Advertising, and any related services agreed to be provided by Kelsey to the Buyer pursuant to the Contract which may include Advertising on a Website, within an E-newsletter and/or on a Social Media Page.
Social Media Page: the social media page (by way of example, a Twitter or Facebook page) operated or controlled by Kelsey, as identified in the Order.
Target Views: the total number of impressions, “click throughs” or views the Advertiser wishes the Advertising to generate within the Publication Period.
Website: the website operated or controlled by Kelsey, as identified in the Order.
Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes email.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that statute or statutory provision.
Unless the context requires otherwise, words importing the singular shall include the plural and the same shall apply the other way round.
2. APPLICATION OF THESE CONDITIONS
The Order constitutes an offer by the Buyer to purchase the Services in accordance with these Conditions.
The Order shall only be deemed to be accepted at the earlier of Kelsey: (a) issuing written acceptance of the Order (by way of order confirmation) or (b) publishing the Advertising on the Website, within an E-newsletter and/or a Social Media Campaign (as the case may be), at which point and on which date the Contract shall come into existence.
These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Any quotation given by Kelsey shall not constitute an offer, and is only valid for a period of 10 days from its date of issue.
Kelsey may amend these Conditions at any time by giving written notice to the Buyer. Any Orders placed by the Buyer prior to the implementation of amendments shall be governed by the Conditions prevailing on the date of the Order.
3. The Services and the BUYER’S Obligations
3.1 The Buyer undertakes and warrants to Kelsey that:
3.1.1 in relation to any Advertising the Buyer enters into the Contract as a principal notwithstanding that the Buyer may be acting directly or indirectly for the Advertiser;
3.1.2 the reproduction and/or publication of the Advertising by Kelsey as originally submitted or as amended pursuant to Condition 4 will not breach any contract or infringe or violate any copyright, trade mark, or any other intellectual property or other personal or property rights of any person or render Kelsey liable to any proceedings whatsoever;
3.1.3 any information supplied by the Buyer in connection with the provision of the Services is accurate, complete and true in all respects;
3.1.4 in respect of any Advertising which contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified the Buyer has, or has procured that the Advertiser has, obtained the authority of such living person to make use of such name, representation and/or copy;
3.1.5 the Advertising complies with the requirements of all relevant laws, rules and regulations for the time being in force or which may be applicable in such jurisdiction as the Advertising shall be made available;
3.1.6 the Advertising is legal, decent, honest and truthful and complies with all relevant codes relating to advertising as may be appropriate including (but not limited to) the UK Code of Non-Broadcast Advertising and Direct Promotional Marketing and all other relevant codes under the general supervision of the Advertising Standards Authority, or such other equivalent organisation;
3.1.7 in relation to any financial promotion, as defined under the Financial Services and Markets Act 2000 (the Act), the Buyer has ensured that the Advertiser is, or the Advertising has been, approved by an authorised person within the meaning of the Act or the Advertising is otherwise permitted under the Act, under the Financial Promotion Order 2001 under any other legislation subordinate to the Act; and
3.1.8 the Advertising shall not contain any data, image or other material which:
(a) is offensive, obscene or indecent, or is capable of being resolved into obscene or indecent images or material;
(b) is defamatory, sexist, threatening or racially, ethnically or otherwise objectionable;
(c) is designed or likely to cause annoyance, inconvenience, unwanted attention or needless anxiety to any other person;
(d) is designed to or is likely to cause disruption to any computer system or to any network;
(e) is illegal or is likely to induce an illegal act; and
(f) it has authority to enter into and implement the Contract.
The Buyer shall provide the Advertising to Kelsey promptly and no later than the Copy Deadline, and in such format expressly specified by Kelsey, without further reminder by Kelsey.
3.3 Where the Buyer is an advertising agency or media buyer it warrants that it is authorised by the Advertiser to place the Advertising with Kelsey.
3.4 Kelsey shall be entitled at any time without notifying the Buyer to make changes to the Services which are necessary to comply with any applicable security or other statutory requirements and shall determine the manner in which the Services are provided.
3.5 Kelsey shall use reasonable commercial efforts to maintain the availability of the Website 24 (twenty four) hours per day, 7 (seven) days per week.
4. Acceptance AND USE OF ADVERTISING
4.1 All contents of Advertising are subject to Kelsey’s approval. Kelsey does not undertake to review the contents of any Advertising and any such review and approval by Kelsey shall not be deemed to constitute an acceptance by Kelsey that such Advertising is provided in accordance with these Conditions nor will it constitute a waiver of Kelsey’s rights under the Contract.
4.2 Kelsey:
4.2.1 shall, following its acceptance of the Advertising, perform the Services on the Website, E-newsletter and/or Social Media Page (as the case may be) for the Publication Period, in accordance with any requirements set out in the Booking Notes, subject to the provisions of the Contract;
4.2.2 reserves the right at its sole discretion to decline to publish or to omit, suspend or change the position and/or contents of any Advertising accepted by it;
4.2.3 may, without relaxing or reducing the Buyer’s warranties and obligations set out in Condition 3, refuse or require to be amended any artwork, materials or copy for or relating to Advertising so as to comply with the legal or moral obligations placed upon Kelsey or to avoid infringing a third party’s rights or any statutory or regulatory requirements; and
4.2.4 reserves the right at any time during the Publication Period to remove the Advertising from the Website, E-newsletter and/or Social Media Page (as the case may be) if Kelsey reasonably considers the Advertising breaches any applicable laws or the rights of any third party or is prejudicial to the interests of Kelsey and/or its business.
It is the responsibility of the Buyer to check the accuracy of the Advertising and, without affecting the provisions of Condition 7, Kelsey assumes no responsibility for the repetition of an error in the Advertising.
5. social Media campaigns
5.1 This Condition 5 shall apply where Kelsey is to publish Advertising on a Social Media Page and the Buyer wishes the Advertising to continue until the Target Views are achieved.
5.2 If Kelsey, acting reasonably, considers that the Target Views will not be achieved prior to expiry of the Publication Period, Kelsey shall provide a draft Change Order (as defined in the next sentence) to the Buyer proposing changes to the Services which may enhance traffic to the Social Media Page so that the Target Views may be achieved. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on: (a) the Services; (b) the Fees; (c) the Publication Period; and (d) any of the terms of the Contract. No proposed changes shall come into effect until a Change Order has been signed by both parties and, once duly signed, that Change Order shall amend the Contract, accordingly.
6. Payment
6.1 Kelsey will charge the Buyer the Fees based on its rate card in force at the time of formation of the Contract or such other amount agreed between the parties in writing.
6.2 Additional fees may be charged by Kelsey for delivery of additional value added services such as tracker and trafficking fees and shall be agreed between the parties in writing.
6.3 Kelsey may invoice the Buyer for all or any part of the Fees at any time after acceptance of the Order.
6.4 Unless otherwise agreed between the parties, the Buyer shall pay all invoices for the Fees in full prior to the Advertising being published on the Website and in any event, no later than 30 (thirty) days from the date of invoice. Time of payment shall be of the essence.
6.5 All sums due in respect of the Fees are exclusive of Value Added Tax or other applicable sales tax, which the Buyer shall pay in addition to the Fees.
6.6 If the Buyer fails to make any payment due to Kelsey under the Contract by the due date for payment, then:
6.6.1 where the Buyer is an advertising agency or media buyer, the Buyer shall without affecting any other right which Kelsey may have, be liable for the following reductions in any commission otherwise allowed to agencies or media buyers:
(a) 3% on the gross rate where the overdue amount has not been paid on the due date;
(b) a further 2% making a total of 5% on the gross rate, where the overdue amount remains unpaid for 30 days or more after the due date; and/or
6.6.2 the Buyer shall pay interest on the overdue amount at the rate of 2% per cent per annum above Lloyds Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
6.7 The Buyer shall additionally pay all expenses Kelsey may incur in collecting arrears on overdue payments whether or not proceedings have been taken and regardless of the outcome of such proceedings.
The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
7. Liability
7.1 Nothing in the Contract shall limit or exclude either party’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be limited or excluded by applicable law.
7.2 Subject to Condition 7.1, Kelsey shall not be liable to the Buyer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of damage to goodwill; and (g) any indirect or consequential loss.
If Kelsey provides any estimates or targets relating to:
the number, proportion or type of online users likely to be exposed to the Advertising placed on the Website or within the E-newsletter, or Target Views; and/or
the number of exposures each such online user is likely to receive,
the Buyer acknowledges and agrees that such estimates or targets are ultimately beyond Kelsey’s control and, accordingly, Kelsey shall not be liable for any costs or losses incurred by the Buyer or by any third party as a result of the Buyer’s reliance on such estimates and targets. Kelsey does not, under any circumstance, provide a guarantee to the Buyer that its provision of the Services will result in such estimates or targets being achieved.
Kelsey will not be liable for any loss of copy, artwork, photographs, data or other materials which the Buyer supplies to it and the Buyer shall be responsible for retaining in its possession sufficient quality and quantity of such materials for whatever purposes it may require.
7.5 Subject to Conditions 7.1 to 7.4 inclusive, Kelsey’s total liability (whether in contract, tort or otherwise) under or in connection with the Contract or based on any claim for indemnity or contribution shall be limited to the Fees (excluding any VAT, duty, sales or similar taxes) paid by the Buyer to Kelsey for the Services.
This Condition 7 shall survive termination or expiry of the Contract.
8. Intellectual Property
8.1 Except as provided in the Contract, Kelsey retains all right, title and interest in and to the content of the Website, E-newsletter and Social Media Page including without limitation copyrights, trade marks and other intellectual property rights.
8.2 The Buyer (or the Advertiser) retains all rights, title and interest in and to the Advertising, including without limitation copyrights, trade marks, database rights and other intellectual property rights.
The Buyer shall procure that the Advertiser grants to Kelsey a royalty-free, non-exclusive licence to use, publish and reproduce the Advertiser’s name, logo, trade marks and brands to the extent necessary to enable Kelsey to comply with its obligations under the Contract.
8.4 Any ideas, concepts, know-how or techniques developed by Kelsey or obtained during the performance of the Services will be owned exclusively by Kelsey.
9. Termination AND CANCELLATION
9.1 Without limiting its other rights or remedies, Kelsey may terminate the Contract by giving written notice to the Buyer if:
9.1.1 the Buyer fails to pay any amount to Kelsey due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
9.1.2 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 (fourteen) days of being notified in writing to do so;
9.1.3 any of the warranties or representations given by the Buyer contained in the Contract are false or inaccurate in any material way;
9.1.4 the Advertising breaches any applicable laws or the rights of any third party or is prejudicial to the interests of Kelsey;
9.1.5 the Buyer’s financial position deteriorates to such an extent that in Kelsey’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
9.1.6 the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
9.1.7 the Buyer ceases or threatens to cease to carry on business.
The Buyer may cancel the Contract without cause by giving Kelsey written notice prior to the Cancellation Date.
On termination of the Contract for any reason:
9.3.1 Kelsey will be entitled to immediately suspend publication of, or remove, the Advertising;
9.3.2 the Buyer shall pay Kelsey, on demand, an amount that represents any unearned series discounts offered to it by Kelsey under the Contract;
9.3.3 the accrued rights, remedies, obligations and liabilities of Kelsey as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
9.3.4 any Conditions which expressly or by implication survive termination shall continue in full force and effect.
10. Indemnity
The Buyer shall indemnify and keep Kelsey fully and effectively indemnified against any liability (which liability shall include, without limitation, all losses, costs, claims, demands, actions, damages, legal and other professional fees and expenses on a full indemnity basis) which Kelsey may suffer or incur as a result of any Advertising, the infringement of any intellectual property rights of any third party, or by reason of any breach or non-fulfilment of any of the Buyer’s obligations in respect of the Contract.
11. Data Protection
11.1 For the purposes of this Condition 12 all personal data will be looked after in accordance with General Data Protection Regulations (GDPR) as detailed in Kelsey’s privacy policy. Please refer to our full policy at https://www.kelsey.co.uk/privacy-policy/ , with particular reference to the section 1 and 2 – Business Contact Information and Customers / Prospects.
11.2 The Buyer shall procure that the Advertiser shall comply with the General Data Protection Regulations (GDPR).
12. Unforeseen events
12.1 Except with respect to obligations to pay the Fees or other charges, Unforeseen Event means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, ceasing to be entitled to access the internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
12.2 If a party is wholly or partially prevented from carrying out its obligations under the Contract by the occurrence of an Unforeseen Event, then that party’s obligation to perform in accordance with this Contract will be suspended for the duration of the Unforeseen Event.
12.3 As soon as practicable after the Unforeseen Event arises, the party affected by the Unforeseen Event must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Contract.
13. Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this Condition 13.1, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 13.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day from its date of issue after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, the next working day after transmission.
A working day, for the purposes of this Condition 13, shall mean a day other than a Saturday, Sunday or public holiday when banks in London are open for business.
14. general
14.1 No one other than a party to the Contract shall have any right to enforce any of its terms.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.3 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract. Nothing in this Condition shall limit or exclude any liability for fraud.
The Buyer shall not assign the Contract or any part of it to any person, firm or company without Kelsey’s prior written consent.
Failure or delay by a party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of its rights under the Contract. Any waiver by a party shall not be deemed a waiver of any subsequent breach.
14.6 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.